9.  The applicant is a public limited company whose registered office is in Hamburg. It publishes the Bild, a daily newspaper with a large circulation. The present case concerns the publication by the newspaper of two articles about X, a well-known television actor. Between May 1998 and November 2003 X had played the part of Police Superintendent Y, the hero of a television series broadcast on a private television channel in the evenings, until 2005. By October 2004, 103 episodes had been broadcast, the last 54 of which had starred X in the role of Police Superintendent Y. The average audience rating was 18% (between 3 and 4,700,000 viewers per episode).
10.  On 14 June 2003 the applicant company revealed that X had been convicted of unlawful possession of drugs. After receiving a warning from X, it undertook, on pain of an agreed penalty, to refrain from publishing information according to which four grams of cocaine had been found at X’s home that he had had sent to him by post from Brazil and for which he had been given a prison sentence, suspended for five months, and fined 5,000 euros (EUR).
11.  At approximately 11 p.m. on 23 September 2004 X was arrested at the Munich beer festival (Oktoberfest) for possession of cocaine. In a sworn statement (eidesstattliche Versicherung) a journalist from the applicant company declared that she had asked the police present at the scene whether X had been arrested and, if so, on what grounds. The police had confirmed that X had been arrested in the Käfer tent in possession of cocaine, without giving any further details.
12.  According to that statement, the journalist had then contacted the public prosecutor, W., from the public prosecutor’s office of Munich Regional Court I, in charge of relations with the press, and had asked him for information. W. had confirmed that X had been arrested in the Käfer tent in possession of cocaine. According to W., plain-clothes police officers had arrested X because they had seen him making a suspicious movement with his hand when coming out of the toilets. The officers had searched him, and, having found him to be in possession of an envelope containing 0.23 grams of cocaine, had arrested him. According to W., the arrest had taken place at approximately 11 p.m. on 23 September and a criminal complaint was currently being investigated.
13.  In its 29 September 2004 edition, the applicant company’s daily newspaper, the Bild, published the following headline in large type on its front page:
“Cocaine! Superintendent Y caught at the Munich beer festival.”
The article, which was printed in small type, read as follows:
“He came out of the gents tapping his nose suspiciously and was arrested! At the beer festival the police caught X (... years old, Superintendent Y on television), in possession of a small envelope of cocaine. See page 12 for the details.”
The following headline appeared on page twelve of the daily:
“TV star X caught in possession of cocaine. A bretzel (Brezn), a beer mug [containing a litre of beer – Maß] and a line of coke (Koks).”
The article, printed in small type, read as follows:
“Thursday night, 11 p.m. At the beer festival there was drinking, partying, swaying arm in arm. And sniffing.... In the celebrities’ tent the TV star X (... years old, whose real name is ...) came out of the gents tapping his nose and attracting the attention of police officers. They searched the star actor from the TV series Y (of which, by June, there had been more than 60 episodes in five years). COCAINE! X had a packet on him containing 0.23 grams of coke, and was arrested. Public prosecutor W. from Munich told the Bild: “He was making suspicious movements with his hand, tapping his nose with his fingers. This of course attracted the attention of our officers. An investigation is under way. Only a small quantity of cocaine is involved though. W. : “Right in the middle of the festival grounds (Wiesn) – it might have been snuff tobacco, but our men have a flair for this sort of thing...”. X had already had a run-in with the law for possession of drugs. In July 2000 the Superintendent from the TV series had been given a five-month suspended prison sentence and two years’ probation and fined EUR 5,000. He was accused of illegally importing drugs. On a trip to Brazil X had arranged for four grams of cocaine to be sent to his address in Munich. His probation period ended two years ago. The quantity of the drug found in the tent ... is negligible. What can the actor expect? According to a legal expert questioned by Bild: “Even if the probation period is over the previous conviction is recent. X may get an unsuspended prison sentence – up to six months”. Why prison? “X has apparently not been sufficiently daunted by the suspended prison sentence”. The actor has probably had to submit to a forensic head hair examination. Each centimetre of hair will enable the expert to determine whether and how much cocaine was taken. Yesterday X refused to comment. P.S: “In every toilet cubicle in the tent ... there are signs saying: “The use of drugs is liable to prosecution!”
The article was accompanied by three photos of X, one on the first page and the other two on page twelve.
14.  On the same day, during the morning, press agencies and other newspapers and magazines reported on X’s arrest, referring in part to the article published in the Bild. That day the prosecutor W. confirmed the facts reported in the Bild to other written media and television channels, two of which (“RTL” and “pro7”) broadcast the same reports that evening. During one of the broadcasts the prosecutor W. made the following statement:
“The police officers saw X making a suspicious movement with his hand while coming out of the men’s toilets and concluded that he had taken something. They searched him and found an envelope containing 0.213 grams of cocaine. He had already been convicted of importing drugs and given a suspended prison sentence. He is not a first offender (Ersttäter). He should have known that he should not touch drugs. He can now expect a further prison sentence, even if the quantity found on him is insignificant.”
15.  In its 7 July 2005 edition the Bild printed the following headline on its inside pages: “TV series Superintendent X confesses in court to having taken cocaine. He is fined 18,000 euros!”
The article read as follows:
“Munich – On TV he plays a superintendent who puts criminals behind bars. Yesterday, it was the turn of the actor X (... years old, ...) to be hauled up in front of the court and confess! X, who had to explain himself to the Munich District Court [Amtsgericht] on charges of “unlawful possession of drugs”, has confessed to taking drugs! X’s counsel ... stated: “We fully acknowledge the offence with which we have been charged in the indictment”. X confessed to the court: “I have occasionally smoked cannabis and taken cocaine from time to time. This has not made me happy. It had not turned into a habit but is just something that I have done from time to time”. Question from the court ...: “Are you currently taking drugs?” Reply from X: “No, I smoke cigarettes.” The sentence: a fine of EUR 18,000. The court: “The accused’s full confession has counted in his favour.” On TV X continues investigating on the side of law and order. In Vienna he is in front of the cameras for the television series ... which should be starting on the second channel in the autumn.”
The article was accompanied by a photo of X.
16.  Immediately after the articles appeared, X. instituted proceedings against the applicant company in the Hamburg Regional Court. The applicant company attached to its initial reply the statement by its journalist (see paragraphs 11 and 12 above) and numerous press articles about X, including a number of interviews given by him, to Bunte magazine among others, together with photos of him.
17.  On 30 September 2004 the Hamburg Regional Court imposed an injunction on publication of the article, following a request lodged by X on 29 September 2004. In a judgment of 12 November 2004 it confirmed the injunction. That judgment was upheld by the Court of Appeal on 28 June 2005.
On 6 October 2004 the Regional Court also imposed an injunction on publication of the photos illustrating the article. It confirmed that decision in a judgment of 12 November 2004. The applicant company did not challenge that judgment, which became final.
(b)  The main proceedings
(i)  Judgment of the Regional Court
18.  On 11 November 2005 the Hamburg Regional Court prohibited any further publication of almost the entire first article, on pain of an agreed penalty, under Articles 823 § 1 and 1004 § 1 (by analogy) of the Civil Code (see paragraph 47 below), read in the light of the right to protection of personality rights (Allgemeines Persönlichkeitsrecht). It ordered the applicant company to pay EUR 5,000 as a penalty under the agreement and to reimburse the procedural expenses (EUR 811.88, plus statutory interest accrued from 4 November 2004).
19.  According to the Regional Court, the article in question, which mentioned X’s name and was accompanied by photos of him, amounted to a serious interference with his right to the protection of his personality rights; the disclosure of his criminal conduct had, so to speak, resulted in his being pilloried and discredited in the eyes of the public. The court found that, despite those negative effects, reporting of that kind would nonetheless have been lawful in the event of serious crimes that were part of contemporary society and on which the press was entitled to report. Any interference with a criminal’s private sphere was limited, however, by the proportionality principle, which involved a balancing exercise between the competing interests. The court held that in the present case the right to protection of X’s personality rights prevailed over the public’s interest in being informed, even if the truth of the facts related by the daily had not been disputed. Neither the nature of the crime committed, nor the person of X, nor any other circumstances justified publication of the article at issue.
20.  The court observed that whilst a drugs-related offence was not a petty crime, particularly as in the present case it had been cocaine, which was a hard drug, X had been in possession of only a small quantity of that drug and had not been accused of drug trafficking. The type of offence involved was of medium, or even minor, seriousness, was a very common one and there was no particular public interest in knowing about it. The court added that, unlike serious crimes (such as spectacular robberies, or murders), there were no particular circumstances distinguishing the offence in question from ordinary crimes, even if there was an assumption that drug abuse was more widespread amongst key figures from the arts world and the media than in other circles. Furthermore, the way in which the report had been made by the applicant company confirmed that the offence itself was not an important one. The report had focussed more on X’s person than on the offence, which would probably never have been reported in the press if it had been committed by a person unknown to the public. Similarly, the court pointed out, whilst X’s previous conviction for a similar offence was such as to increase the public’s interest, it was his only previous conviction and, moreover, dated back several years.
21.  The court also found that publication of the articles in question was not justified by the person of X. The public did admittedly show an interest in Police Superintendent Y, a character in a relatively popular television series, but not in the actual person of the actor playing the part. There was nothing to suggest that X attracted the attention of the public on account of his performance as an actor or other activities bringing him within a circle of persons about whom the public had a need for regular information. The interest in X did not, in any event, go beyond the interest habitually manifested by the public in leading actors in German television series.
22.  The court observed that the applicant company had published many articles about X over a period of six years and particularly over the last three years. The vast majority of these publications had, however, merely mentioned X’s name – often without a photo – among the names of celebrities invited to various events. Whilst it was undisputed that X had taken part in over 200 national and international cinematographic and televised productions, that did not convey much of an idea of his public importance. Indeed, actors could have starred in hundreds of television series and still remain little known to the public. There was no evidence that X had made a name for himself on account of any particular performance or that he had occupied a prominent position in society which had brought him into the public eye.
23.  X had, to an extent, sought to attract the public’s attention by giving interviews to certain magazines between 2000 and 2003. He therefore had to be more tolerant towards reports published about him than other well‑known figures who avoided the limelight. According to the court, X had not, however, courted the public to a degree that he could be considered to have implicitly waived his right to the protection of his personality rights.
24.  The Regional Court conceded that the fact that the actor had broken the law whereas on television he played the role of a superintendent entrusted with crime prevention was more entertaining for the public than if the actor had played any other kind of role. However, that contrast between the television role and the personal lifestyle of the actor did not mean that the public confused the latter with the fictional character. The actor merely donned the persona of a superintendent, just as he could don that of any other character, without thereby adopting the conduct of the character in question in his daily life. The fact that an actor did not adopt the lifestyle of the character he played could not in any way be regarded as an extraordinary event worthy of being reported. In the court’s view, viewers could distinguish between the actor and his role, even where the actor was well known essentially for playing one particular character.
25.  The Regional Court found, further, that X had not sought to portray himself as an emblem of moral virtue; neither had he adopted a stand on matters relating to drug abuse. The interviews reported by the applicant company contained no comment by X on the subject. In issue no. 48/2003 of the magazine Bunte, X had stated, in passing, that he did not have any alcohol in the house and that he had become a big tea connaisseur. In the court’s view, the fact that X had briefly remarked on his previous conviction in two interviews with magazines in 2000 and 2001 did not mean that he had portrayed himself as an advocate or critic of the fight against drugs or as an expert in the field. That subject had been only marginally covered in the interview, which had mainly concerned the actor’s professional prospects and his difficulties in his relationships.
26.  Observing that when balancing the competing interests, the decisive criteria were how well known X was and the seriousness of the offence with which he was charged, the Regional Court found that the case concerned an actor who was not exceptionally well known and was accused of an offence which, while not insignificant, was not particularly spectacular and could be regarded as fairly common in the entertainment world. The public did not therefore have a great interest in being informed of an event that was actually fairly anodyne, whereas the information published amounted to a serious (gravierend) interference with X’s right to the protection of his personality rights.
27.  The Regional Court found, lastly, that the applicant company was not justified in arguing that the publication of the article was lawful because it pursued legitimate interests. Admittedly, the press officer from the public prosecutor’s office at the Munich Regional Court I had informed a large number of media reporters of the offence with which X had been charged and had disclosed his identity to them; nor was there any doubt that the public prosecutor’s office could be regarded as a “privileged source” (privilegierte Quelle) of information that did not, as a general rule, require verification as to the truth of its content. Moreover, three press agencies had disclosed similar details. However, even assuming that it had received all the information before publishing the article in question, the applicant company could only conclude that the published information was true and was not thereby absolved from the requirement to check whether its publication was justified in terms of X’s right to protection of his personality rights. In the court’s opinion, the question of the veracity of information issued by a public authority had to be distinguished from that of the lawfulness of the subsequent publication of that information by the press.
28.  The court found that it could be presumed that institutions providing a public service, and in particular the public prosecutor’s office and the police, made every effort, in accordance with the principle of neutrality, not to issue information unless the public interest in doing so had been carefully weighed against that of the persons concerned. However, such institutions were not necessarily in a better position than a publisher to weigh the conflicting interests at stake regarding the dissemination of the information through the media.
29.  In the instant case the applicant company was actually better placed than a member of the Munich public prosecutor’s office to judge the degree to which X was known and the question regarding whether the public had an interest in learning of his arrest. On that point the court considered that account also had to be taken of the context in which the information was published: the public services were not in a position to anticipate every possible form of dissemination of factual information in any foreseeable context or to foresee whether a report mentioning the person’s name was justified or not. Accordingly, publishers could not generally consider that the disclosure of a person’s identity by a privileged source would make any kind of report on the person concerned legal, without having first balanced the interests at stake.
30.  The Regional Court pointed out that there were situations in which there may be doubts regarding the assessment by the public authorities. Accordingly, in the case of X, the question arose as to whether it was appropriate for the public prosecutor’s office to have expressed an opinion on the sentence that X could expect to receive when the criminal investigation had only just started. The court concluded that the applicant company could not argue that it had relied on the disclosure of X’s name by the public prosecutor’s office.
(ii)  Judgment of the Court of Appeal
31.  On 21 March 2006 the Court of Appeal dismissed an appeal by the applicant company, but reduced the amount of the agreed penalty to EUR 1,000. It upheld the conclusions of the Regional Court, pointing out that the disclosure of a suspect’s name when reporting on an offence constituted, as a general rule, a serious infringement of the right to the protection of personality rights, even if it was a drug offence of medium or minor seriousness. In X’s case the fact of informing the public that he had taken cocaine could adversely affect his future prospects of securing acting roles and, in particular, of obtaining a role in an advertisement or in television series aimed at a young audience.
32.  The Court of Appeal reiterated the relevant criteria when balancing the rights of the press against the right to protection of personality rights, as established by the Federal Court of Justice (see paragraph 48 below). It confirmed that the nature of the offence and the exact circumstances in which it had been committed made it an everyday offence and would not have aroused any interest if the perpetrator had been little known. In the court’s opinion, the possession and consumption of low quantities of drugs did not have adverse effects on third parties or on the general public. As X had not taken cocaine in the tent in front of everyone, his conduct did not imperil a young audience that might be likely to imitate him on account of his being a well-known television star.
33.  The Court of Appeal acknowledged that the public had a particular interest in being informed and entertained because X was a well-known figure and had played the part of a police superintendent over a long period of time (längerer Zeitraum). However, even if X played that role, this did not mean that he had himself necessarily become an idol or role model as a law-enforcement officer, which could have increased the public’s interest in the question whether in his private life he actually behaved like his character. It was clear that the actor X could not be identified with the fictitious character of Superintendent Y that he played. The fact that X had his fan clubs and had made public appearances as the actor who played the part of Superintendent Y did not alter that finding. It could well be that X’s appearance, his manner of presenting himself, and the relaxed attitude portrayed in his films appealed to others, particularly a young audience. That did not mean, though, that others saw in him a moral role model whose image should be corrected by the newspaper report in question.
34.  The publications submitted by the applicant company were indeed evidence that X was hugely popular, but did not support the contention that he had used confessions about his private life to attract the public’s attention. Nor was the newspaper report justifiable on the ground that X had been arrested in public, in a tent, because the drug had actually been consumed in the men’s toilets, that is, in a place that fell within the protected private sphere, and out of public view. Lastly, even if it were to be established that X’s arrest was a matter of substantial public interest, the same could not be said of the description and characterisation of the offence committed out of public view.
35.  Lastly, while upholding the conclusions of the Regional Court regarding the role of the Munich public prosecutor’s office, the Court of Appeal stated that the applicant company’s liability did not extend beyond minor negligence given that the information disclosed by the public prosecutor’s office had led it to believe that the report was lawful. The illegal disclosure by the public prosecutor’s office did not, however, make publication by the applicant company legal. The Court of Appeal accordingly reduced the agreed penalty to EUR 1,000. It refused leave to appeal on points of law because its judgment did not conflict with the case-law of the Federal Court of Justice.
(iii)  The decisions of the Federal Court of Justice
36.  On 7 November 2006 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law.
37.  On 11 December 2006 the Federal Court of Justice dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions (Anhörungsrüge). It stated that when balancing the public’s interest in being informed about public criminal proceedings against an interference with the defendant’s private sphere, the Court of Appeal had taken into account the circumstances of the case and had reached its decision in accordance with the criteria established in its case-law. There was no evidence that the relevant criteria for the balancing exercise had been disregarded. The Federal Court of Justice stated that the fact that the civil courts had found against the applicant company did not permit the latter to lodge an appeal on points of law and did not amount to a violation of the right to be heard.
38.  On 15 August 2005 the Hamburg Regional Court granted an application by X for an injunction against any further publication of the second article.
(b)  The main proceedings
(i)  Judgment of the Regional Court
39.  By a judgment of 5 May 2006, the Regional Court granted X’s application in the main proceedings, ordered the applicant company to refrain from any further publication of the second article on pain of penalty and ordered it to pay EUR 449.96 in costs, plus statutory interest accrued from 22 September 2005. It based its decision on essentially the same grounds as those set out in its judgment of 11 November 2005 (see paragraphs 18-30 above). It stated that the case in question had to be distinguished from the one that had been the subject of the judgment of the Federal Court of Justice of 15 November 2005 (see paragraph 48 below) in that the person concerned in that case, Prince Ernst August von Hannover, was much more widely known than X, so the press had been entitled to report on the substantial penalty imposed in that case.
(ii)  Judgment of the Court of Appeal
40.  On 12 September 2006 the Hamburg Court of Appeal dismissed an appeal by the applicant company on essentially the same grounds as those given in its judgment of 21 March 2006 (see paragraphs 31-35 above). On the subject of the relevant criteria for weighing the conflicting interests, it stated that, according to the judgment of the Federal Constitutional Court of 13 June 2006 (see paragraph 49 below), the fact that a person was a prominent figure or one known to the public was not a sufficient factor in itself to justify the existence of an interest on the part of the public in being informed of his or her conduct. In the present case, the public’s interest in being informed and entertained, which derived from the fact that X was a well-known figure and starred as a superintendent in a television series, was insufficient to justify the interference with his right to decide for himself which information he was willing to disclose (informationelle Selbstbestimmung).
41.  The applicant company’s reliance on the high audience rating of the television series Y. did not, in the Court of Appeal’s opinion, prove that X. had served as a role model or a counter model. If a role model existed for millions of viewers, the role model in question was the character of the superintendent. The Court of Appeal reiterated that the fact that X. had been arrested in a public place did not make the newspaper article lawful because the offence itself had been committed out of public view, in the men’s toilets. The suspicious movement that X had made with his hand had admittedly attracted the attention of the police at the scene, but it had not been established that other persons present in the tent had noticed that X had taken cocaine.
42.  The Court of Appeal added that whilst the fact that the “quality press” had reported the case might indicate that there was a not insignificant (nicht geringes) interest in reporting it, that was not a basis on which to conclude that the interference with X’s right to the protection of his personality rights had been lawful.
43.  The Court of Appeal refused the applicant company leave to appeal on points of law on the ground that its judgment did not conflict with the case-law of the Federal Court of Justice, in particular the latter’s judgment of 15 November 2005 (see paragraph 48 below).
(iii)  Decisions of the Federal Court of Justice
44.  On 17 April 2007 the Federal Court of Justice refused the applicant company leave to appeal on points of law on the ground that the case did not raise a question of fundamental importance and was not necessary for the development of the law or to guarantee uniformity of the case-law. On 12 June 2007 it dismissed an appeal lodged by the applicant company claiming that it had not had a sufficient opportunity to make submissions.
45.   On 5 March 2008 a three-judge panel of the Federal Constitutional Court declined to entertain constitutional appeals lodged by the applicant company against the court decisions delivered in the first and second sets of proceedings. It stated that it was not giving reasons for its decision.
46.  On 12 September 2006 and 29 January 2008 the Hamburg Regional Court ordered the applicant company to pay X two penalty payments of EUR 5,000, each one for having breached the order of 15 August 2005 (see paragraph 38 above). The court criticised the applicant company for, inter alia, publishing in the 7 July 2006 edition of the daily newspaper Die Welt and on the newspaper’s internet page (welt.de) on 22 March 2007 the following statement by one of its editors:
“Accordingly, we had no right whatsoever to report on the trial of the popular actor X for possession of cocaine, even though he was a very well-known recidivist and the offence was committed at the beer festival in Munich.”